1986.12.01
Netherland
NETHERLANDS ARBITRATION INSTITUTE
ARBITRATION RULES
(in force as of 1 December 1986)
INTRODUCTION
1. Establishment and Purpose NAI
The Netherlands Arbitration Institute (NAI), established in 1949, is a
non-profit organization in the form of a foundation (stichting) under
Dutch law. Its Governing Board consists of representatives from the
Association of Chambers of Commerce in the Netherlands (Vereniging
Kamers van Koophandel in Nederland); the Chambers of Commerce of
Amsterdam and Rotterdam; the Netherlands Organization of the
International Chamber of Commerce and the Association for Industry and
Trade (Maatschappij voor Nijverheid en Handel). In addition, the
Governing Board includes a number of attorneys and corporate lawyers who
have extensive experience with arbitration. The judiciary is also
represented on the Governing Board by the Presidents of the District
Courts of Amsterdam, Rotterdam and The Hague.
The purpose of the Institute is to encourage the use of arbitration as a
means of resolving disputes, especially by providing trade and industry
with a well-organized arbitral process. Arbitration Rules are available
for this purpose, and the Secretariat, under the direction of the
Administrator, acts as an impartial agency for the administration of
arbitrations.
2. Arbitration Rules 1986
On 1 December 1986, a new Arbitration Act entered into force in the
Netherlands (Arts. 1020 - 1076 of the Code of Civil Procedure). The new
Act applies to any arbitration whose place is situated in the
Netherlands, irrespective of the nationality of the parties.
The enactment of the new law necessitated a revision of the NAI
Arbitration Rules which dated from 1 February 1979. The revised Rules
became effective in conjunction with the new Act on 1 December 1986.
They apply to all arbitrations filed with the NAI Secretariat from that
date.
Although the contents of the Rules have not changed greatly, the new
Rules are more detailed than the 1979 version. This is caused by the
fact that the new Arbitration Act contains more provisions than the
previous law did. A considerable number of these new provisions were
incorporated into the new Rules. All relevant provisions are thereby
combined into one document. For an average arbitration, therefore, it
will no longer be necessary to consult the Act in addition to the NAI
Arbitration Rules. A second reason for the NAI Board to opt for a
detailed set of Rules was the desire to provide parties and arbitrators
with clear information on the course and conduct of an NAI arbitration.
Allowing the parties and arbitrators to organize a particular
arbitration in the manner required by the circumstances of the dispute,
however, has remained the foremost priority.
3. International Arbitration
Like the new Act, the new NAI Rules do not distinguish between domestic
and international arbitration. They are sufficiently flexible to suit
both types of arbitration.
The Rules do, however, contain certain provisions that are especially
tailored to the specific circumstances of international arbitration:
longer periods of time (Art. 5(2)); nationality of arbitrators (Art.
16); language (Art. 40); decision according to the rules of law as
opposed to amiable composition (Art. 45(2)); applicable law (Art. 46);
and dissenting opinion (Art. 48(4)). For most of these provisions, the
Rules use a practical definition of international arbitration: "an
arbitration in which at least one of the parties is domiciled or has his
seat or actual residence outside the Netherlands" (Art. 1(g)).
The Rules are meant primarily for arbitrations, both domestic and
international, taking place in the Netherlands. The Rules may, however,
govern arbitrations that are held outside the Netherlands, if the
parties agree or the arbitral tribunal determines accordingly (see Art.
22(1)). In such cases the Netherlands Arbitration Act will not apply
(see Art. 1073(1) of the new Act).
4. Recommended Text Arbitration Clause:
"All disputes arising in connection with the present contract, or
further contracts resulting thereof, shall be finally settled in
accordance with the Rules of the Netherlands Arbitration Institute
(Nederlands Arbitrage Instituut):.
Additionally, various matters may be provided for:
(a) "The arbitral tribunal shall be composed of one arbitrator/three
arbitrators."
(b) "The place of arbitration shall be ---(city)."
(c) "The arbitral procedure shall be conducted in the --- language."
(see ss (section sign)5 below)
(d) "The arbitral tribunal shall decide as amiable compositeur." (see ss
6 below)
(e) "Consolidation of the arbitral proceedings with other arbitral
proceedings pending in the Netherlands, as provided in A